2 June 2011

Anticipating the UK Supreme Court...

As I mentioned yesterday, I don't have a lot of time on my paws to blog at the moment. However, I do intend to compose something on the ongoing furore about the jurisdiction of the UK Supreme Court before the end of the week. The whole affair is a complex and increasingly messy salmagundi, including the political ingredients of nationalism and Unionism, a sprinkle of legal nationalism which is not incompatible with a Unionist politics, the conceptual universality of human rights and the knuckly difficulty this poses in a multi-jurisdictional state like Britain; the palpable inadequacy of the High Court of Justiciary's approach to human rights claims in Scots criminal cases, in particular its total failure to take seriously the Crown's unjust follies in in the Nat Fraser case; the inarticulacy of SNP figures, in distinguishing their general point about the independency of Scots law from the outcomes of these particular cases (specifically Cadder and lately, Fraser); the disavowed Unionist politics of their opponents, who attempt to present the status quo as expert ordained and de-politicised, which it ain't; misunderstandings about the differences between the institutions of the UK Supreme Court and the European Court of Human Rights - I could go on. And on.

As a primer for thinking through the issues involved, I think it is helpful to try distinguish some of the different elements on this gristly platter. Let's start with the judgements in the Nat Fraser v. H.M. Advocate. It is worth reading, and contrasting, the 2008 judgment of Lord Justice Clerk Gill in the High Court of Justiciary appeal, and contrast it with Lord Hope's in the UK Supreme Court. Kenneth Roy, writing in the Scottish Review, has an admirable summary of the issues raised in the case, for those who don't fancy teasing through the judicial prose. (If you wanted to read one of the judgments from the perspective of general interest, I'd say that Lord Hope's treatment is less densely written and more generally accessible). Grown familiar with the facts and circumstances of the UK Supreme Court's judgment on Nat Fraser's devolution minute, I'd be astonished if many of you would care to defend the proposition that the High Court of Justiciary came to a fair or just decision. By dint of a precognition (which are not generally admissible in Court), the Crown acquired evidence on a key plank of their case against Fraser which seriously undermined the narrative they invited the empanelled jury to accept in convicting Fraser. This information was simply not disclosed to the accused, who was convicted without getting sight of it, and did not do so until well after the verdict. It is ludicrous to suggest that it is a failure attributable to the tardiness of defence representatives, not to ask witnesses about evidence which it had enjoyed no access to. That the SNP has decided to make its case for the "sanctity" of Scots Law, riding on the back this palpable unjust set of proceedings - is crackers. As Lord Hope noted at paragraph [32], this is not a case of new evidence emerging after a trial, which was unavailable to both sides during the course of proceedings....

"It is plain that this was information which might materially have weakened the Crown case as presented at the trial, or might materially have strengthened the case for the defence. That was why the Crown, very properly, felt that it ought to have disclosed this material. The situation in this case is quite different from that which will normally arise where the court is presented with an appeal on the ground of fresh evidence. A fresh evidence case usually proceeds on the basis that, while there was nothing wrong with the trial as it was originally conducted, there was nevertheless something missing from it which ought now to be taken into account. Had the material that was missing from this case been disclosed, however, the conduct of the trial by both the Crown and the defence would have quite different. That is why the non-disclosure in this case goes to the root of the question whether the appellant received a fair trial."

That despite, there are a number of more toothsome morsels on this mixter-maxter platter. When the issue last burst onto the political scene in March of this year, I composed a couple of posts, trying to outline the legal position, on the jurisdiction of the UK Supreme Court over Scots criminal matters. In the course of the first, I was highly critical of Fiona Hyslop's basically misleading presentation of these issues on BBC Newsnicht. In a lower key way, her mad March is/ought muddle has only been enlarged in the subsequent arguments this week. In the second, I offered a critique of a piece by John McTernan in the Hootsmon, which argued that the SNP were engaged in "trumped up posturing" on the jurisdiction of the Court. He needed reminding, I submitted, about the extent to which his own position was politicised by a Unionist politics, rather than the value neutral, humble, technocratic and commonsensical conclusion of dulldog legal reason. That point too, I think, obtains today. Both posts may be a helpful starting point for folk trying to tease out the various elements so hurriedly and untidily knotted together in today's debates on the jurisdiction of the Supreme Court.

Thus primed, I intend to trudge back over this territory, later this week.

33 comments
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Well, I look forward to that. However, we should not fall into the trap of seeing the Nat Fraser case as having brought this all on (and by the way, I agree that the HCJ's decision in this case is incomprehensible and the Crown Office's eagerness to pursue a man who - guilty or not - has certainly been fitted up is repellant). As you point out, this was all foreshadowed in the discussions over Jim Wallace's very inadequate proposals to do something about s57(2) of the Scotland Act. These have been, in the mean time, very much ongoing. The bold Jim timed a consultation on draft clauses to co-incide with Scottish election purdah - http://www.advocategeneral.gov.uk/oag/262.html. Mr MacAskill evidently had to rush out a reply in March to beat the referee's whistle. At the same time Ms Alexander's Scotland Bill Commttee was reporting that more detailed would be required before they could recommend legislative consent on it. Lord Jim's consultation ended in May: if you know what has been going on since you are better informed than I, but in any case there is no doubt, given that the Scotland Bill is still marching through Westminster, that this issue would, Nat Fraser or no Nat Fraser, have become a live one again soon. And doing something about it is in the SNP Manifesto: so sitting on its hands wasn't really an option for the Scottish Government.

Indeed Braveheart, the framers of the Scotland Act should have taken heed of that advice, and leave arrangements which had worked from 1707 (or, if you want to be picky, 1876) well alone. But they didn't, and the fact the novel and dangerous system introduced in 1998 is broke may be demonstrated from the fact that it was Westminster's own Advocate General who declared it needed fixing when kicking off his consultations last year.

This is dog whistle politics from the SNP aimed at people who wouldn't know Lord Hope from Bob Hope. The stuff about the supreme court is a cloak for the real message: 'the English are a right shower of basturts, they're letting murderers out of our Scottish jails. If you want a murderer for a neighbour vote no in the referendum.'

On the Nat Fraser case there's an interesting snippet in The Firm magazine about the Crown Office paying the costs for Arlene Fraser's family to attend the supreme court hearing in London.

'The idea that you need a court with a majority of judges from England to tell us how to implement human rights in Scotland I think is an extraordinary way for or belief for any Scot's lawyer to have. I mean, after all, the European Convention on Human Rights was written by a Scot, David Maxwell Fyfe.'

Fyfe was a Tory politician, who attended school in Edinburgh, studied at Oxford, and had a career in law and politics in England. What then is the relevance of the country of his birth in this matter? It looks to me like just more more blood and soil nationalism from Salmond.

considers the British national parliament as their true seat of democracy

choses the British national boundaries as their land mass.

Thus, a Brit nat is a British nationalist is a nationalist who draws the line a bit differently from a Scottish nationalist.

A Brit nat is a Brit nat.

Being a Labourite you think yourself above all that sort of thing but in fact you are much more profoundly involved in nationalism. Your parliament still fantasises about its days of empire with Tident and 3 wars currently ongoing. Your parliament has lords and ladies as an upper house (actually the fact that there are lords and ladies is irrelevant as long as the Labourites buy into this British has been good for you upper middleclas empire line).

You are part of the problem till you stop being part of the problem and support independence).

I agree with your Nat Fraser point - it is profoundly unhelpful to refract this issue through that particular prism. Not least because to do so is to defend, I'd suggest, the nigh indefensible. Politically, perhaps, I can see that an abstract issue of institutions is hard to convince the media to take an interest in. A concrete case serves more handily, whatever its facts and circumstances.

Braveheart,

I don't find your metaphor of simple functionality particularly helpful. As Am Firinn suggests, this is an issue created by the mode of devolution passed by the Labour Party in 1998. It is an issue some folk would be keen to present in a de-politicised way, but the basic questions about autonomy of Scots law and the distinctiveness of its institutions - those are par excellence political questions, even if they are not immediately party political questions.

Anonymous,

There are a number of perspectives one might bring to bear on this issue - it is by no means are straightforward as you suggest. However, I'm happy to concede your point about Salmond's Fyfe line on Newsnicht. He seemed to find the reference to be rather more clever than insightful than it actually is - and emptied of meaningful alternative content, the ethnic logic it appeals to is not something I care for. At all.

You obviously don't understand that you are simply part of the vestiges of the government designed for business enterprise, first in the name of the King/Queen then in the name of Britannia.

You truly don't understand 3 things :

1) that all these people running down to Westminster are part of the system of Brit nat post-imperialism. Yes, these are grandiose terms but they are a clear description of who you are and what Westminster is all about.

2) that the 1970s (when Kinnock wazs the leftist of left) it was arguable logic that a UK trade union structure would have a louder voice for the poor and working class.

Those days died with Kinnock as Labour leader as the informant and Blair at the executioner. Brown was just a dour individual who misunderstood economics and stole the throne. Blair probably was happy after all to leave. But not before he'd destroyed any humanist element in Labour (Trident, wars, NHS reforms, privatisation, ID cards... etc)

3) that the Labour of today has (I hope) left you since it is a party of middle England post-Thatcherite voters and policies. I say, 'I hope' because if you're actually happy in it then your just a Brit nat without a moral compass.

No more messageing between us unless you choose the YES side because that's all I have to say.

I don't have time to talk miniscule points of principle with Brit nats and it's a waste of time anyway.

LPW. "the basic questions about autonomy of Scots law and the distinctiveness of its institutions - those are par excellence political questions, even if they are not immediately party political questions"

In a democracy all questions are political.

But if it is a basic question about autonomy of Scots law and the distinctiveness of its institutions, then it's a bit strange that we are talking of the Supreme Court as a stepping stone on the way to Strasbourg.

If submission to Strasbourg is not a problem for the Nationalists (and it appears not to be) then talking a stop on the way in London shouldn't be either.

And if London returns at least as good justice, but quicker, then that's good, practically and politically, is it not?

Except, that's not how the Nats see it... they see it as another way to attack the UK...

Time for a pro-English comment. The English would not be so spineless as to interpose between their criminal justice system and the Court at Strasbourg a revising chamber in Paris, three quarters of whose members were trained in French law, and think it was quite all right because two of the judges were English lawyers.

I'm quite fond of many English people, I've plenty of things positive to say about them and absolutely they wouldn't stand for a Supreme Court being set up in Edinburgh which overturned their High Court decisions.

The Nat Fraser case had five judges, two Scots, two English and one Northern Irish.

The idea that the English are stamping their mark on Scots crimminal law is just jingoistic nonsense. The Court of appeal was wrong in the Cadder and Fraser cases and the Supreme court corrected their errors.Get over it.

In any event the Supreme Court only intervenes in questions of the application of the european convention on human rights, for which a detailed knowledge of Scottish criminal law is not required.

@Scottish Republic "I'm quite fond of many English people, I've plenty of things positive to say about them and absolutely they wouldn't stand for a Supreme Court being set up in Edinburgh which overturned their High Court decisions."

Are you seriously suggesting that because of a couple of spelling mistakes or even typing mistakes his opinion is somehow not valid? That's pretty close to trolling. What next, are you going to tell him to speak the Queen's English?

The difference between Strasbourg and this UK Supreme Court is that Strasbourg does not assume the authority to overturn criminal cases. Simple. The complicated part is where the court draws the line with human rights. You either believe that Scots Law has incorporated the convention and is capable of upholding human rights or you believe that uniquely amongst European nations, our ancient legal system somehow now requres an extra external body that others do not to enforce the convention.

I actually find it quite sad that it has come to this. Before the SNP got into power I would have been greatly surprised at the prospect of parties of any stripe in Scotland defending what is ultimately and undeniably an attempt to create some form of UK law, admittedly the extent of which we do not know. It seems that it is a case of taking away with the one hand far more substantial things that the crumbs that are being offered to a Scottish Government with an overwhelming mandate in the other.

I'm suggesting that the spelling of "offense" indicates the speller is from North America.

No more and no less..like the owner of the Sun, Mr Braveheart himself and "Sir" Sean, all of whom, for some reason, want Scotland to be "independent", but who don't actually want to live here.

"..You either believe that Scots Law has incorporated the convention and is capable of upholding human rights or you believe that uniquely amongst European nations, our ancient legal system somehow now requres an extra external body that others do not to enforce the convention. ....

Our "ancient legal system" withheld evidence from the court in a murder case....in which case an innocent person is convicted of murder, or a murderer gets off Scot-free, ... that's serious.

The Supreme Court stopped his miscarriage of justice....

Which is no cause to criticise the who court, even if the judges are English (which they are not...).

I am not particularly interested in somewhat unsophisticated debates about the role of the diaspora in our immediate political discourse. I certainly don't think they should be ignored but nonetheless they cannot, of course, vote. Given that we are discussing legal issues here, we can dismiss any flimsy arguments concerning enthnicity. This is a debate on a civic matter.

Do you honestly believe that the possibility of flaws in the Scottish legal system that are not particularly unusual or disproportionate within a broader Western context, and more importantly, which could have been addressed within a Scottish context, as previous flaws in our system have been, require what could ultimately be the beginnings of the dismantling of our long-held judicial independence? No other legal system would tolerate this.

This perspective on the part of those who believe in the continuation of the Union actually surprises me, as I stated before. It is supposed to be a Union, not an incorporation. If it appears to the Scottish public that such politicians are willing to make an ideological sacrifice of the Scottish legal system then I believe that is a serious own goal on their part, however cack-handedly this issue might have been handled by MacAskill and Salmond. They are losing sight of their previously asserted role of the protectors of Scotland within a Union which they believed benefitted Scotland; in short, of their traditional position in the debate as those proposing what they saw as the best of both worlds.

Might I add that the strange overemphasis on the possibility of Scots Law not being flawless (no system is, but ours is noenetheless largely admirable) appears to be not only a denial of reality but a red herring and, moreover, a manifestation of the Scottish cringe. In short, you seem to believe that for future generations, UK law (to whatever degree) would somehow be inherently and consistently better, simply because it is a UK system.

I cannot understand why a UK Supreme Court is required. Why could a Scottish court not do the same job for us without the controversy?

Apologies for the delay in publishing your remarks. This was unintentional. As folk who come here regularly will know, I don't pre-screen comments. Unfortunately, blogger does so and seemed to take your perfectly cogent thoughts for spam.

Rather than have the Supreme Court act as a court of appeal with the power to over-turn decisions of the scottish court,why not allow the Privy Council to have these matters referred to it for consideration on an advisory basis. I understand the Privy Council do this for already for and with the agreement of certain foreign jurisdictions. The advisory report (and I think I do mean advisory rather than hortatory) could then be considered by the scottish court, thereafter to accept it in whole or in part, or reject it, making such re-statement of their judgement as they felt appropriate. Should the punter remain dissatisfied he retains the option to stop going native but to go european.

"I have never understood the apparent inability of the Scottish Conservatives now to defend Scots criminal law as John Mackay did back in 1998. I have also never understood Conservatives’ antipathy to the European convention on human rights. After all, the convention’s principal author was a Scot—Sir David Maxwell Fyfe—who was, incidentally, a Conservative politician."

I'd still like to know exactly what point Salmond was trying to make when he said 'The idea that you need a court with a majority of judges from England to tell us how to implement human rights in Scotland I think is an extraordinary way for or belief for any Scot's lawyer to have. I mean, after all, the European Convention on Human Rights was written by a Scot, David Maxwell Fyfe.'

He seems to be suggesting that because Fyfe was 'bone of our bone, blood of our blood' that Scots should somehow have some special insight or understanding when it comes to the application of the ECHR. Maybe he's looking for a lighter touch regulatory system like he did for the wonderful Scottish financial sector he used to boast about.

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